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01/25/96 DIANE ESSER v. JOSEPH MCINTYRE

January 25, 1996

DIANE ESSER, APPELLEE,
v.
JOSEPH MCINTYRE, APPELLANT.



Appeal from the Appellate Court for the First District; heard in that court on appeal from the Circuit Court of Cook County, the Hon. William D. Maddux, Judge, presiding.

The Honorable Justice Heiple delivered the opinion of the court:

The opinion of the court was delivered by: Heiple

The Honorable Justice HEIPLE delivered the opinion of the court:

This appeal arises from plaintiff's personal injury suit, in the circuit court of Cook County, seeking damages for injuries allegedly sustained when plaintiff slipped on unpopped popcorn kernels spilled by defendant. At the close of the evidence, the jury returned a verdict in favor of defendant. The appellate court reversed and remanded for a new trial, holding that the jury instructions improperly stated defendant's duty of care. (267 Ill. App. 3d 611, 642 N.E.2d 803, 204 Ill. Dec. 902.) This court granted defendant's petition for leave to appeal (145 Ill. 2d R. 315). We affirm.

FACTS

In 1983, three men, Joseph McIntyre, Donald Fett, and Joseph O'Brien, along with their respective guests, Sue Pence, Joanne Walden Votava, and Eva Myers, planned a five-day vacation to Acapulco, Mexico. When Eva Myers, Joseph O'Brien's guest, became unable to go on the trip, she suggested that O'Brien invite Diane Esser, the plaintiff. After meeting O'Brien once, plaintiff agreed to accompany him and the other couples to Acapulco at O'Brien's expense.

Other than O'Brien, plaintiff did not meet her fellow travelers until she arrived at Chicago's O'Hare International Airport for the flight to Acapulco. When the six travelers arrived in Mexico, they checked into a villa at the Villa Vera Hotel. Their villa was a separate structure with three levels. The lower and upper levels contained bedrooms and the middle level contained a private pool, bar, and kitchen.

Plaintiff testified that, after checking in, the vacationers went out for dinner and then returned to the villa. Around 11 p.m., plaintiff retired to the bedroom and O'Brien followed soon after. Just after midnight, she and O'Brien heard the other vacationers pounding on their locked bedroom door and asking them to come out and "party." Plaintiff and O'Brien declined and remained in the bedroom.

Plaintiff stated that she woke up the next morning at 7 a.m. and sat on the sun deck for a short time. Wearing leather loafers, she then walked to the kitchen to order coffee from room service. As she stepped onto the kitchen's glazed tile surface she fell, hit her back on the floor, and screamed. After falling, she looked around and realized that she had slipped on unpopped popcorn kernels that were strewn across the kitchen floor.

Plaintiff testified that O'Brien and defendant McIntyre responded when she fell. Plaintiff asked defendant why no one had cleaned up the popcorn. Defendant replied that he was sorry and that he had opened the popcorn the night before and spilled it, but could not find anything to clean it up.

Plaintiff further testified that she delayed seeking medical attention until she was back in Chicago, where she could see her own doctor. During the remainder of the trip, plaintiff suffered back pain and developed bruises on her left arm, left leg, and hip as a result of the fall. Plaintiff admitted, however, that she was still able to sunbathe by the pool and participate in various activities throughout the remainder of the vacation.

Plaintiff then testified that, after returning to Chicago, she consulted her physician who prescribed a neck collar and pain medication, and advised her to keep her legs elevated. In 1984, she underwent back surgery for a ruptured disc, during which her lower spine was fused. In 1991, she underwent a second surgery for refusion of her lower spine. Plaintiff testified that, as a result of the fall, she continues to experience back pain which limits her physical activity. Further, these physical problems have caused her to suffer depression, for which she takes medication.

Defendant disputed plaintiff's testimony regarding her fall. He and the other four travelers testified that they were never aware that plaintiff fell and stated that they observed plaintiff participating in various activities after the alleged fall, including swimming, dancing, shopping and lounging on a raft in the pool. O'Brien, Pence, and Votava further testified that they noticed no bruises on plaintiff's body even though they observed her wearing a bikini in the days following the alleged fall. Photos taken of plaintiff during the vacation corroborate that there were no bruises.

Defendant and the other four vacationers also testified that there was never any popcorn in the villa during the vacation. In addition, defendant stated that he suffers from diverticulitis, which prevents him from eating popcorn. However, plaintiff's witness Eva Myers, who was not on this vacation, testified that ...


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